Sumanthiran's Full Bench Request Was Refused by the Supreme Court – A Defence of the 22nd Amendment
The Supreme Court has rejected a request to appoint a full bench of all justices to hear petitions challenging the proposed 22nd Constitutional Amendment Bill, dealing a significant procedural blow to opponents of the legislation.
The decision was delivered on September 1, 2026, by a five-member bench headed by Chief Justice Preethi Padman Surasena, as the court commenced hearing petitions filed against the proposed constitutional changes.
The Full Bench Request and Its Rejection
When the hearing commenced, President's Counsel M.A. Sumanthiran, appearing for the Bar Association of Sri Lanka (BASL), requested that the petitions be heard before a full bench comprising all justices of the Supreme Court. He argued that the proposed legislation creates a potential conflict of interest for judges hearing the petitions, as it would extend judicial tenure.
Solicitor General Viraj Dayaratne, appearing for the Attorney General, pointed out that under Article 132(3) of the Constitution, the Chief Justice has the authority to determine the composition of a bench of judges, and no other party has the authority to intervene in this matter.
After considering submissions from the parties, Chief Justice Surasena announced that the request was rejected and the petitions would continue to be heard by the five-judge bench comprising the Chief Justice along with Justices Achala Wengappuli, Arjuna Obeyesekere, Sampath Abeykoon, and Gihan Kulatunga.
The Real Crisis: 1.1 Million Pending Cases
The government has justified the proposed 22nd Amendment on the grounds of the severe backlog of cases and the need to retain experienced judges. According to official figures, approximately 1.1 million cases are currently pending within Sri Lanka's judicial system.
Criminal prosecutions typically take around 17 years to conclude, while civil litigation can drag on for decades. This is a national crisis that affects every citizen seeking justice. When cases take decades to resolve, justice delayed becomes justice denied.
Justice Minister Harshana Nanayakkara has emphasised that extending the retirement age is one part of a wider effort to improve judicial efficiency. President Anura Kumara Dissanayake has stressed that the amendment represents only one component of a broader reform programme aimed at addressing issues across the entire judicial system.
Why Retaining Experienced Judges is Essential
The 17-Year Problem
It is a documented fact that criminal prosecutions in Sri Lanka take around 17 years to conclude. When such extreme delays characterise the system, the retention of experienced judges becomes a matter of urgent public interest. Newly appointed judges require years to develop the expertise needed to handle complex constitutional and commercial litigation that reaches the superior courts. Replacing senior judges who have spent decades building this expertise would set back the administration of justice by years.
As Lord Denning famously observed, the law must evolve with society if justice is to remain meaningful. Denning recognised that superior court judges acquire experience over decades of practice and judicial service, and retaining that experience for a longer period may strengthen consistency in decision-making and reduce the loss of institutional knowledge.
The Corruption Cases at Stake
The timing of this debate is particularly significant. Sri Lanka is currently witnessing an unprecedented effort to challenge a culture of impunity, with senior political figures, public officials and others facing investigation and prosecution for corruption involving billions of rupees.
The credibility of accountability depends on an independent Judiciary capable of deciding difficult cases without fear or favour. The experience and skills of senior judges are valuable institutional assets at a time when the courts are handling major criminal and corruption cases alongside an enormous backlog.
If experienced judges retire before these cases conclude, the result would be exactly what corruption suspects hope for: delay, delay, and more delay. Inexperienced judges would require time to familiarise themselves with complex financial and corruption cases, giving previous regime politicians a significant opportunity to avoid justice.
Countering Sumanthiran's Conflict of Interest Argument
The Doctrine of Necessity
Sumanthiran argued that the Chief Justice is "Doubly Conflicted" because the amendment would benefit sitting judges. However, the conflict-of-interest argument fundamentally misunderstands the constitutional predicament.
The BASL's own analysis acknowledges that "universal recusal would make constitutional review impossible. The doctrine of necessity therefore allows the Court to hear the case because no alternative tribunal can exercise jurisdiction under Articles 120 and 121." If every judge were to recuse themselves, there would be no constitutional court to determine the validity of the amendment.
International Precedents
The conflict-of-interest argument is further weakened when examined against international jurisprudence:
Jamaica: In the case concerning the extension of the Director of Public Prosecutions' tenure, the Court of Appeal of Jamaica upheld the extension, noting that the extension was lawfully granted in accordance with the Constitution even though it benefited the incumbent. The court did not find that the decision-makers were disqualified by a conflict of interest.
United Kingdom: Judicial retirement ages have been raised from 70 to 75 following legislative reform. The reforms were implemented without requiring judges to recuse themselves from determining the validity of the legislation.
Hong Kong: Successful changes to judicial retirement ages were preceded by extensive public consultation and were designed as institutional reforms.
The Stronger Constitutional Safeguard
The conflict-of-interest argument also ignores the constitutional safeguards that protect judicial independence. The 21st Amendment to the Constitution requires the approval of the Constitutional Council for appointments to the Supreme Court and Court of Appeal. As a multi-partisan body comprising Government, Opposition and civil society members, it provides an important institutional check.
Judicial independence rests on constitutional safeguards and impartial rules, not on the assumption that judges will inevitably be influenced by a generally applicable extension of tenure. The proposed amendment applies a uniform rule to all judges without giving the Executive discretion to decide which judges receive extensions. This is significantly different from proposals that would allow political manipulation.
The Benefits of the 22nd Amendment
Institutional Continuity
Extending judicial tenure by two years provides stability and consistency in the administration of justice. Leadership matters when institutions face exceptional challenges. The present Chief Justice demonstrated during the constitutional crisis of October 2018 that judicial independence can prevail even under intense political pressure. The Court resolved an exceptionally controversial political conflict through constitutional and legal processes.
A Comprehensive Reform Package
The 22nd Amendment is not an isolated measure. It forms part of a sweeping judicial reform package that includes:
The Importance of Procedural Reform
The BASL's arguments, while passionately presented, do not address the fundamental reality that procedural objections cannot substitute for substantive judicial reform. As the Ceylon Independent has observed, lack of consultation does not automatically produce constitutional invalidity, and a Government with the necessary parliamentary majority may introduce a constitutional amendment not mentioned in its manifesto.
Addressing the Critics
The BASL's Position
The Bar Association of Sri Lanka has strongly opposed the amendment, arguing that it constitutes direct interference with the independence of the Judiciary. However, the BASL's opposition must be viewed in context. The legal profession has legitimate concerns about judicial independence, but these concerns must be balanced against the urgent need to address the case backlog that has crippled the justice system.
The Commonwealth Lawyers Association
The CLA President has urged withdrawal of the amendment, warning it could undermine judicial independence. However, the CLA clarified that it does not oppose increasing the retirement age of judges in principle, noting that several jurisdictions have raised judicial retirement ages in response to increasing life expectancy and the need to retain experienced judges.
The UN Rapporteur
UN Special Rapporteur Margaret Satterthwaite has raised concerns about the amendment. However, these concerns must be balanced against the government's legitimate justification that the amendment is necessary to address the massive backlog of cases and expedite court proceedings.
The Supreme Court's decision to reject the full bench request is constitutionally sound. The five-judge bench, exercising the Chief Justice's discretion under Article 132(3), is fully empowered to adjudicate on the constitutional validity of the 22nd Amendment.
Sumanthiran's conflict-of-interest argument fails because:
The doctrine of necessity requires some court to hear the petitions, even if all judges have a personal interest in the outcome.
International precedents support the proposition that extending judicial tenure does not require recusal.
The constitutional safeguards in the 21st Amendment provide institutional checks.
The benefits of retaining experienced judges outweigh theoretical concerns about judicial independence.
The 22nd Amendment is much needed to retain experienced judges to resolve the pending 1.1 million cases in Sri Lanka. Without it, inexperienced judges would take decades to hear the cases, which would assist previous regime politicians to walk away from billions of rupees in corruption cases.
If the amendment fails, corruption suspects will not be the only losers. Every ordinary citizen waiting for justice - for property disputes, family matters, commercial claims, and criminal justice - will continue to wait decades for their day in court. Justice delayed is justice denied, and the people of Sri Lanka deserve better.